Chapter 1: Introduction: The BackstoryThe heart of the story of William Rehnquist's appointment to the Supreme Court begins on September 17, 1971, and ends with an announcement on October 21, 1971. That story begins in the next chapter. First, it is important to understand the backstory.It is well known that Richard Nixon made extraordinary use and abuse of his presidential powers. It is not widely known that those uses and abuses also related to the Supreme Court. More than any president since Franklin D. Roosevelt, he worked hard to mold the Court to his political liking. That meant not only making conservative appointments; it also meant creating appointments. William Rehnquist, who would be Nixon's most important appointment, was actively involved in the efforts to create vacancies on the Court while serving as an assistant attorney general. It is not an overstatement to say that Rehnquist, working with Nixon's attorney general, John Mitchell, and others, misused the resources and powers of the Department of Justice, and other executive branch agencies, to literally unpack the Court by removing life-tenured justices they found philosophically or politically unacceptable. It was all part of a strategy that commenced even before Nixon assumed office.Resignation of Chief Justice Earl WarrenThe scheme began during the 1968 presidential campaign. The vacancy on the Supreme Court awaiting Richard Nixon when he became president was not an accident. Nixon had made certain that that vacancy would be his to fill. During the 1968 presidential campaign, by a letter of June 13, 1968, Chief Justice Earl Warren informed President Lyndon Johnson that he wished to resign "not because of reasons of health or on account of any personal or associational problems, but solely because of age." Employing the easy candor that characterized all his decisions, Warren explained it was time "to give way to someone who will have more years ahead of him to cope with the problems which will come before the Court."Candidate Richard Nixon, and his campaign manager and law partner John N. Mitchell, knew exactly why Earl Warren had resigned when he did, five months before the November election decision. The politically savvy Warren, a former governor of California, believed that Nixon would win. And Nixon's "law and order" presidential campaign often targeted Warren's Court. As Nixon biographer Stephen Ambrose observed, "By 1968, Nixon had become almost as critical of the Warren court as he was of the Johnson Administration. He was promising, as president, to appoint judges who would reverse some of the basic decisions of the past fifteen years. When Warren resigned, reports spread quickly that he had chosen this moment to do so because he feared that Nixon would win in November and eventually have the opportunity to appoint Warren's successor." Nixon did not attack Earl Warren personally -- as many conservatives did. But he made sure that, as president, he would select the next chief justice.Less than two weeks after receiving word that Warren wished to retire, President Johnson called the press into the Oval Office to announce: "I have the nomination for the chief justice. The nomination will go to the Senate shortly. It is Justice Abe Fortas, of the State of Tennessee," whom Johnson had placed on the Court in 1965. To fill the Fortas seat as associate justice, Johnson added, "I am nominating Judge [Homer] Thornberry, presently on the Fifth Circuit." The Democratic president had nominated two of his closest cronies, men he knew would continue the judicial activism of the Warren Court and the liberalism that Lyndon Johnson had embraced throughout his political career. It would prove a mistake for all.While no one could read the U.S. Senate better than Lyndon Johnson, given his many years as its majority leader, in this instance he misread his strength as a lame-duck president. With Johnson not seeking reelection, and his vice president Hubert Humphrey fading in the race with Nixon, Senate Republicans, joined by southern Democrats who were less than enamored with Justice Fortas's position on civil rights, decided to fight the Fortas nomination.Publicly, Nixon remained above the fray. Privately, he encouraged Senator Robert Griffin (R-MI), to attack Fortas's elevation to chief justice. The effort to block the nomination took several tacks. At the outset, Senator Griffin tried to make a point of Fortas's close relationship with President Johnson, but his Republican colleague on the Judiciary Committee, Senate minority leader Everett Dirksen, dismissed that avenue. Dirksen observed that presidents regularly appointed "cronies" to the Supreme Court, citing Abraham Lincoln selecting his campaign manager David Davis, President Harry Truman appointing his private adviser Fred Vinson, and more recently President Kennedy sending his lieutenant Byron White to the Court.As his biographer Laura Kalman notes, Fortas's opponents then found an endless arsenal among his own opinions as a member of the Warren Court that could be used against him. For example, Republican senator Strom Thurmond of South Carolina spent several hours berating him about the Warren Court's criminal law holdings, even holding Fortas responsible for a ruling made before he arrived. The Senate Judiciary Committee called a witness from the Citizens for Decent Literature, who had examined fifty-two of the Court's rulings and determined that Fortas's vote had prevented the Court from finding obscenity in forty-nine of the cases. In addition, the witness had a slide show (later reviewed by the senators, and press, in a closed session) to display the types of pornographic materials he found offensive but that Justice Fortas had tolerated.Most damaging, however, Senator Griffin received an anonymous tip from an American University employee, where Fortas was teaching a seminar at the law school, that the school had raised "an exorbitant sum from businessmen to pay Fortas's salary." At that time it was not unusual for a justice to earn outside income by teaching; but in this case the amount was relatively large -- and possibly tainted. This was reason to reopen the hearings, which revealed that Fortas's former law partner, Paul Porter, had gone to friends and clients to raise $30,000, with half going to the American University law school and the other half going to Fortas. Porter said that Fortas had not been told of this arrangement, but the Senate made much of the appearance of impropriety of Fortas's $15,000 fee, which amounted to 40 percent of a Supreme Court justice's salary at that time.When the Fortas nomination came to the Senate floor, the Republicans mounted a historic filibuster -- the first against a Supreme Court nomination. The Johnson White House lacked the political muscle to prevent this unless, it was said, Richard Nixon urged a halt. But Nixon refused to comment publicly, and through backchannels he sent advice and praise to the Republicans' effort.10 On October 1, 1968, when the Senate failed to vote for cloture (thus ending the filibuster), Justice Fortas, realizing that his nomination was doomed, requested that Johnson withdraw it. With the Fortas nomination defeated, the Thornberry nomination became moot. Given the limited time available, Johnson could name no successor to Chief Justice Earl Warren. The vacancy for chief justice awaited Nixon.Ousting Abe FortasThe story of how Richard Nixon created a second opening on the Court has never been fully told. After winning in November, Nixon arranged for retiring Chief Justice Earl Warren to remain on the Court until the end of the Court term in June 1969. This gave the new president six months to select his chief justice. Ostensibly to show Earl Warren his appreciation for remaining, but in truth because Nixon wanted to size up the remaining eight still on the Court for himself, he decided to have a White House dinner to honor the retiring chief justice. Of particular interest to Nixon were five justices -- William O. Douglas, Hugo Black, Thurgood Marshall, Abe Fortas, and William Brennan -- who with Earl Warren formed the core of the Court's controlling liberal voting bloc.The "Earl Warren Dinner" on April 23, 1969, was a lavish, black-tie affair, with the members of the Supreme Court and wives, Earl Warren's family, Nixon's cabinet and wives, and his former law partners and their wives heading the guest list. Richard Nixon treated his old enemy Warren like a visiting head of state, starting with a private meeting with wives in the Yellow Oval Room in the family quarters, then a walk down the Grand Staircase with the Marine Band playing, where about 110 well-wishers including the chief's family and friends awaited and watched, and finally with "Ruffles and Flourishes" to usher everyone into the East Room for a formal dinner, which ended with a convivial, and witty, toast to the chief justice by the president. Astute observers could have noticed that the new president's guest list included three men he was actively considering for the Supreme Court: Thomas E. Dewey, Herbert Brownell, and Warren Burger.Only a few Nixon aides knew of the president's thinking, and even fewer knew of his hidden agenda. Nixon wanted to create additional vacancies, and the Earl Warren Dinner was typical of the public misdirection that concealed his true plans. White House aide John Ehrlichman, then counsel to the president, reported in his memoir that "the Justice Department was hearing rumors [at this time] of Justice Abe Fortas' dealings with [convicted] financier Louis Wolfson. By May 1969, Life magazine had written an expose of Fortas' agreement with Wolfson, and Nixon cleared his desk of other work to focus on getting Fortas off the Court." Ehrlichman didn't say that it was the Department of Justice that was spreading rumors and leaking this information to Life reporter William Lambert. Ehrlichman had been given advance proofs of the Life story several days prior to its publication, scheduled for Sunday afternoon, May 4. The Justice Department had passed along the fact that, while sitting on the Supreme Court, Fortas had accepted a $20,000 retainer from Louis Wolfson, who was under investigation by the Securities and Exchange Commission (SEC). (He would later be indicted and convicted of fraud.) At the time of the investigation, Wolfson bragged that his friend Abe Fortas was going to help him.On May 1, three days before publication by Life, Assistant Attorney General William Rehnquist sent Attorney General Mitchell a memorandum providing a precedent for the Department of Justice to investigate the Fortas-Wolfson relationship. To date, this memo has not surfaced at the National Archives with other Department of Justice papers of the period. Nonetheless, the contents of the memo and the reason it was written by Rehnquist have been reported. Veteran Washington journalist and author Robert Shogan interviewed John Mitchell in 1971 while he was still attorney general, and Mitchell in turn (after waiving any attorney-client privilege with his constitutional lawyer) opened the door for an interview with Rehnquist. Although additional information has surfaced in the years since Shogan published A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court (1972), this book recorded Rehnquist's crucial role.Mitchell told Shogan, "We were struggling to find answers to what we should or shouldn't do." With good reason. For the Department of Justice, as an arm of the Executive Branch, to investigate or prosecute any federal judge, not to mention a Supreme Court justice, certainly raised fundamental legal issues, and the investigation of Fortas was uncharted. Article III of the Constitution provides: "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior." There is no express provision in the Constitution respecting removals, except for Article II, which provides for removal from office of "all civil officers of the United States" (including judges and justices) by impeachment. Alexander Hamilton wrote in The Federalist No. 79: "The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government." He added, "Nothing can contribute so much to firmness and independence [of the judicial branch] as permanency in office." Of impeachment, Hamilton further noted: "This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges."Mitchell did not need a constitutional lawyer to understand the limits on his investigative powers relating to Abe Fortas. According to Shogan, he learned (I suspect from Henry Petersen, who had the necessary institutional memory) that the Justice Department had always "been hesitant to seem to threaten the independence of the judiciary." Investigating a Supreme Court justice could place the Justice Department on thin ice, because the power of impeachment belonged exclusively to the Congress. It was for this reason that Mitchell turned to the "intellectual adroitness" of Rehnquist, a former Supreme Court law clerk, for help. Shogan reported the following:(1) Rehnquist "took no part in the direct investigation" of Fortas, which was handled by Will Wilson and Henry Petersen of the criminal division. Rather, Rehnquist was asked, as he himself put it, "to assume the most damaging set of inferences about the case were true" and to "determine what action the Justice Department could take."This was a remarkable assignment. The Justice Department was deciding how to deal with one of the nine highest judicial officials of the nation; whether and how to cross the constitutional divide of a judicial independence. Presumably Rehnquist was to make certain the Department of Justice acted in a constitutional manner. Yet he was told to ignore the facts and assume the worst and most damaging inferences. Common sense -- and careful legal analysis -- would demand facts, not inferences. The only thing more surprising is that he took the assignment. This is Alice in Wonderland, not legal analysis.(2) The worst inference Rehnquist could draw was that Fortas, while sitting on the Supreme Court, had somehow intervened in the government's prosecution of Wolfson's stock market activities. (In fact he had not.) Based on this (false) inference, Rehnquist searched the federal criminal code, and found one provision that "seemed to cover the Fortas-Wolfson relationship, as Rehnquist understood it." It was a statute that made it a crime for "officers of the judicial branch" to be rewarded "for services rendered on behalf of another person before a Government department or agency in relation to any particular matter in which the United States is a party." Shogan notes, "Just what services Fortas had been expected to render in return remained to be established, but this was not Rehnquist's responsibility."(3) Having found a possibly relevant federal criminal law, "Rehnquist next sought to determine whether the Justice Department could prosecute Fortas for violating that law while he remained on the Court." Rehnquist found no precedents that "fit the present case exactly." But he did find that "in 1790 the First Congress, which included among its members James Madison and other drafters of the Constitution, had passed a law making it possible to prosecute Federal judges for bribery." In addition, Rehnquist found that six years later (1796), the third attorney general of the United States had "held that a judge could be called to account for unlawful behavior by criminal indictment as well as by impeachment." Shogan reports that "Rehnquist believed that Attorney General Lee's conclusion was well grounded enough for Attorney General Mitchell to follow some 170 years later. On May 1 Rehnquist sent Mitchell a memorandum advising him that if the department had the evidence, it could prosecute Justice Fortas."Shogan had no reason to examine the basis of Rehnquist's advice, but it is easy to do so. Most striking is what Rehnquist apparently did not tell Mitchell: The 1790 bribery law was not necessarily designed to prosecute judges while in office; rather it provides a remedy after they had been removed by impeachment. The language and history of the Constitution clearly suggest that Congress, not the Executive Branch, is responsible for policing "good behavior" of Supreme Court justices.Nonetheless, Rehnquist's advice gave Mitchell the solace and authority he needed. Mitchell was just getting warmed up. Before the Life story hit the streets he had his press man, Jack C. Landau, obtain a copy of the magazine. (Landau sent a U.S. marshal to New York to pick it up.) Shortly before publication Jack Landau was working his Rolodex, frantically calling reporters who covered the Justice Department and the Supreme Court to give them a heads-up on the coming story. As Shogan observed, this action "put the Justice Department in the dubious position of promoting Life's exposé."The Life story was front-page news. Mitchell, proud of his handiwork, boasted of it at a White House staff meeting on Tuesday, May 6 (before meeting with the Republican leadership), and revealed his further plans for the high court. These were duly noted by presidential aide Patrick Buchanan, who dashed off a memo to the president reporting that the "Attorney General has hinted this morning that this scandal is only a part of what may soon be revealed about Fortas and other 'judges and justices.'" Mitchell was bolstered by Fortas's failure to respond to the Life story. His lack of response prompted The Washington Post to call for his resignation. Members of the House and Senate quickly joined the Post to form a chorus.Although William Lambert denied that the Nixon administration leaked the Fortas story to Life, everyone believed (correctly) that the administration was responsible. Both Republicans and Democrats on Capitol Hill assumed that Nixon and his men were orchestrating the ouster of Fortas. This truth was all but publicly confirmed when it was soon leaked that John Mitchell made a secretive visit to Chief Justice Warren's chambers to discuss Fortas.On May 7, Mitchell's long black limousine pulled quietly into the basement garage of the Supreme Court Building, and the attorney general was whisked through the building for a confidential session with the chief justice. Mitchell had not met Earl Warren before the White House dinner a few weeks earlier, but the glow of good feeling still radiated from that evening.While there was incipient talk of impeaching Fortas in the House of Representatives, Mitchell hoped to enlist Earl Warren -- and the others on the Court -- to persuade Abe Fortas to resign. To bolster his case, Mitchell carried documents that the Department of Justice had just received from the Internal Revenue Service, which had subpoenaed the Louis Wolfson Foundation. These showed that Fortas had agreed to more than a onetime payment of $20,000 from Wolfson: rather, the Wolfson Foundation had arranged to pay Fortas $20,000 a year for life, and should he predecease his wife, the foundation would pay Mrs. Fortas as long as she might live. At the time this was not an unusual arrangement. Justice William O. Douglas had a similar agreement with a foundation, and one of the judges Mitchell was reviewing for promotion to the Supreme Court, Warren Burger, had long received fees for his service on the board of the Mayo Clinic. Many justices received handsome fees for lectures. Mitchell mentioned other documents as well: Wolfson-Fortas correspondence in which Wolfson's case before the SEC had been discussed, and "one letter [in which] Wolfson asked Fortas's help in obtaining a presidential pardon [by having former President Lyndon Johnson request that Richard Nixon grant it]." Mitchell reported that Louis Wolfson, who was now serving his prison term, was cooperating with the Department of Justice. The attorney general ended his visit with the implicit message: If Fortas resigned, the criminal investigation by the Department of Justice would end, saving Fortas and the Court any embarrassment.Did the Justice Department have the goods on Fortas? Not even close. Mitchell's talk was pure bluff. On May 10, Wolfson met with FBI agents and Assistant Attorney General Will Wilson, who headed the Justice Department's criminal division. Wilson had been spearheading the investigation of Fortas with the avowed purpose of removing him from the Court. To the chagrin of Wilson, not only did Wolfson not have any evidence of wrongdoing by Fortas, he exonerated the justice. Wolfson told the government's top prosecutor that Fortas had done nothing for him, nor had he ever hinted that he might. There had been no quid pro quo.Mitchell's next move was political hardball. To increase the pressure on Fortas, the Department of Justice reopened an old investigation that focused on the two people closest to Abe Fortas -- his wife, Carol Agger, a highly paid tax law specialist, and his former law partner, Paul Porter. A Washington, D.C., grand jury was convened to determine if documents allegedly misplaced but purportedly later found in Agger's office safe had been deliberately withheld when they had been subpoenaed in a price-fixing case several years earlier. The grand jury was exploring whether Agger or Porter had obstructed justice -- a serious felony -- by withholding the documents. Lyndon Johnson's Justice Department had investigated this question and found nothing improper, deciding the delay was not an effort to impede the earlier investigation. Reopening of the matter by Richard Nixon's Justice Department was purely a means to torture Fortas.

By the time Fortas presented his plight to his brethren, he had made the decision to retire. More remarkably, he got no sympathy from his colleagues. They treated him as a condemned man. Not one protested that he had broken no law. Not one acknowledged that other justices at the conference table had accepted fees from charitable foundations. Not one suggested that Fortas should stay and fight. Richard Nixon and John Mitchell had intimidated them all.By May 14, 1969, it was over. Mitchell's bluff had succeeded beyond his wildest expectations. Chief Justice Warren had his secretary call the White House. Dwight Chapin took the call and typed a note at 4:20 P.M. that he slipped to the president, who was in a bipartisan leadership meeting: "The Chief Justice needs to talk to you urgently. I have told his office that you will call at 4:45 P.M." Nixon nodded. At the appointed time he excused himself from the meeting to call Earl Warren, and learned that Abe Fortas was resigning. Nixon, who was scheduled to deliver a major speech on Vietnam to the nation on national television that evening, told Warren that he did not want anything distracting from his speech, so the White House would not announce the resignation until the next day. When the letter arrived at the White House, the chief justice had penned a note to the president, requesting that Fortas "be advised shortly before the release in order that he might inform President Johnson before he hears it on the radio." This was fine with Nixon.Haldeman informed John Mitchell of the news. At the Justice Department there was a small celebration in the attorney general's office. Mitchell summoned Will Wilson and his deputy Henry Petersen to congratulate the team that had been running the smoke machine. When Deputy Attorney General Dick Kleindienst stepped off the back elevator and into Mitchell's office, he was elated by the news. Kleindienst said the occasion called for a drink, so they opened the bar, pouring heartily to toast their success. The celebration was capped with a call from the president, congratulating them on a job well done.

The next morning, before the White House could advise Fortas that they were going to announce the president's acceptance of his resignation, a report was on the wires announcing the resignation. What happened was ironic: the Los Angeles Times ran a story claiming that the Justice Department believed the documents it had obtained from Wolfson showed that Fortas had been willing to assist him with his SEC investigation. It was the result of another Justice Department leak to pressure Fortas, before learning he had folded. When Fortas read the story, he was outraged; he knew such an interpretation was not possible, nor had he ever expressed such a willingness. Fortas called the Supreme Court's press office, and ordered that they release the news of his resignation immediately. Fortas couldn't have cared less that this was a breach of protocol, since his resignation had not been accepted by the president. Nor, given the treatment he was getting from the Nixon administration, did he give a hoot if releasing the announcement displeased Richard Nixon.The Fortas resignation meant that Richard Nixon now had two seats to fill on the Court: Earl Warren's center seat and the seat of Associate Justice Abe Fortas, who was leaving the Court at fifty-nine years of age. It also meant that two of the Court's most liberal justices were gone. Nixon's aggressive posture toward the high court was paying off in a big way, with the help of John Mitchell and his hard-nosed team at the Justice Department, Rehnquist among them.Selecting a Chief JusticeNixon's first major appointment would prove to be the easiest of all of the four seats that he eventually would fill. After looking briefly at some candidates, more as a matter of courtesy to Republican elders than in hope of finding a new chief justice, the president named his man and watched him sail through the Senate.Shortly after his November 1968 election victory, Nixon told his attorney general designate, Mitchell, that they should consider appointing President Eisenhower's attorney general, Herbert Brownell, as chief justice. This idea never progressed, however, because Brownell took himself out of the running. So did Eisenhower's second attorney general, William P. Rogers, whom Nixon did convince to take the post of secretary of state. J. Edgar Hoover's biographer, Curt Gentry, claims that it was the FBI director who took these men out of contention, because he had worked for them both and despite claiming them both as friends, he did not want them on the Supreme Court. Regardless, both Brownell and Rogers withdrew and suggested a candidate that Nixon had already been considering: Warren Burger, the chief judge of the prestigious United States Court of Appeals for the District of Columbia.Nixon also had considered former New York governor Thomas Dewey, the onetime Republican presidential standard-bearer. But Dewey, then in his late sixties, thought himself too old and was not interested. The rumor that Nixon was considering elevating Associate Justice Potter Stewart prompted Stewart to make a trip to the White House to tell Nixon that it was unwise to elevate a sitting justice to chief justice as President Johnson had tried to do with Fortas. In fact, Nixon was not considering Justice Stewart, for Nixon was less than impressed with Stewart as a jurist.Warren Burger became the leading contender early. He was energetically seeking the job. He was an able politician who realized that his judicial philosophy was exactly what Richard Nixon sought. Burger had learned this in 1967, when he received a letter from Nixon complimenting him on a "law and order" article he had written for U.S. News & World Report. The article was accompanied by a picture of the white-haired jurist, a man who looked like a chief justice from central casting. Nixon referred to and quoted from the Burger article often during his 1968 campaign. Following his inauguration, the new president requested that Judge Burger come to the White House to administer the oath of office to his new cabinet appointees, and after the swearing-in ceremony, Nixon had Burger join him in the Oval Office for a conversation. Nixon asked Burger, who was broadly familiar with the legal community, if he would give John Mitchell his suggestions for men who should be considered for federal judgeships, including the Supreme Court. The president said he did not care if they were Republicans or Democrats -- so long as they were solid conservatives. Burger was flattered, and pleased to assist.Among the names that Burger initially suggested to John Mitchell were G. Harrold Carswell, a forty-nine-year-old judge on the United States District Court for the Northern District of Florida, and Burger's longtime friend Judge Harry Blackmun, a sixty-year-old Federal appeals court judge sitting in the Eighth Circuit. Burger's recommendations were added to a master list that was being prepared by Rehnquist. The list also included a recommendation made personally to Mitchell by Senator Ernest Hollings (D-SC) for Judge Clement Haynsworth, a judge in his mid-fifties on the United States Court of Appeals for the Fourth Circuit; and a candidate being urged by Senator Harry Byrd (D-VA), Lewis Powell, a sixty-one-year-old Democrat from Virginia and the former president of the American Bar Association (ABA).While the media attention was still focusing on the resignation of Abe Fortas, Mitchell asked Judge Burger to come to his office at the Justice Department to review possible candidates to fill the Fortas seat. Mitchell also requested that Kleindienst join the meeting, which Kleindienst later described:I had never met Warren Burger, but I had argued an appeal before him two or three years before. When I walked into Mitchell's office I easily recognized his distinguished features and warm manner. He laughed when I reminded him of the case that I had argued before him....Mitchell and Burger then spent the next hour or two going over a long list of judges, lawyers, and professors. Burger was familiar with almost every person on the list. He knew most personally and commented specifically about the judicial philosophy of nearly all. What impressed me even more, however, was the absence of negative remarks about the persons he discussed. He sought only to point out the positive qualities of each. Not once did he so much as hint that he should be included on the list under consideration. His conversation with Mitchell was impressive and objective.When Judge Burger departed, Mitchell turned to me and asked, "What did you think of that?""Unbelievable.""I'm glad you think so. He's going to be the next chief justice."Mitchell did not select Burger, but there was no doubt in his mind how he became chief justice. "Burger's the first guy to run for the job of Chief Justice -- and get it," Mitchell wryly observed to several aides. Nor is there any doubt, as recorded by Supreme Court historian Henry Abraham, that "Nixon's choice of Judge Burger was one of those rare examples of an indisputably bona fide personal choice by a chief executive [as] chief executive....By his own assertions, he considered his selection of Burger to be 'the most personal of [my] Presidency to date.'"On May 21, 1969, Nixon staged a su

The Rehnquist Choice

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The Rehnquist Choice

The Untold Story of the Nixon Appointment That Redefined the Supreme Court

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Chapter 1: Introduction: The BackstoryThe heart of the story of William Rehnquist's appointment to the Supreme Court begins on September 17, 1971, and ends with an announcement on October 21, 1971. That story begins in the next chapter. First, it is important to understand the backstory.It is well known that Richard Nixon made extraordinary use and abuse of his presidential powers. It is not widely known that those uses and abuses also related to the Supreme Court. More than any president since Franklin D. Roosevelt, he worked hard to mold the Court to his political liking. That meant not only making conservative appointments; it also meant creating appointments. William Rehnquist, who would be Nixon's most important appointment, was actively involved in the efforts to create vacancies on the Court while serving as an assistant attorney general. It is not an overstatement to say that Rehnquist, working with Nixon's attorney general, John Mitchell, and others, misused the resources and powers of the Department of Justice, and other executive branch agencies, to literally unpack the Court by removing life-tenured justices they found philosophically or politically unacceptable. It was all part of a strategy that commenced even before Nixon assumed office.Resignation of Chief Justice Earl WarrenThe scheme began during the 1968 presidential campaign. The vacancy on the Supreme Court awaiting Richard Nixon when he became president was not an accident. Nixon had made certain that that vacancy would be his to fill. During the 1968 presidential campaign, by a letter of June 13, 1968, Chief Justice Earl Warren informed President Lyndon Johnson that he wished to resign "not because of reasons of health or on account of any personal or associational problems, but solely because of age." Employing the easy candor that characterized all his decisions, Warren explained it was time "to give way to someone who will have more years ahead of him to cope with the problems which will come before the Court."Candidate Richard Nixon, and his campaign manager and law partner John N. Mitchell, knew exactly why Earl Warren had resigned when he did, five months before the November election decision. The politically savvy Warren, a former governor of California, believed that Nixon would win. And Nixon's "law and order" presidential campaign often targeted Warren's Court. As Nixon biographer Stephen Ambrose observed, "By 1968, Nixon had become almost as critical of the Warren court as he was of the Johnson Administration. He was promising, as president, to appoint judges who would reverse some of the basic decisions of the past fifteen years. When Warren resigned, reports spread quickly that he had chosen this moment to do so because he feared that Nixon would win in November and eventually have the opportunity to appoint Warren's successor." Nixon did not attack Earl Warren personally -- as many conservatives did. But he made sure that, as president, he would select the next chief justice.Less than two weeks after receiving word that Warren wished to retire, President Johnson called the press into the Oval Office to announce: "I have the nomination for the chief justice. The nomination will go to the Senate shortly. It is Justice Abe Fortas, of the State of Tennessee," whom Johnson had placed on the Court in 1965. To fill the Fortas seat as associate justice, Johnson added, "I am nominating Judge [Homer] Thornberry, presently on the Fifth Circuit." The Democratic president had nominated two of his closest cronies, men he knew would continue the judicial activism of the Warren Court and the liberalism that Lyndon Johnson had embraced throughout his political career. It would prove a mistake for all.While no one could read the U.S. Senate better than Lyndon Johnson, given his many years as its majority leader, in this instance he misread his strength as a lame-duck president. With Johnson not seeking reelection, and his vice president Hubert Humphrey fading in the race with Nixon, Senate Republicans, joined by southern Democrats who were less than enamored with Justice Fortas's position on civil rights, decided to fight the Fortas nomination.Publicly, Nixon remained above the fray. Privately, he encouraged Senator Robert Griffin (R-MI), to attack Fortas's elevation to chief justice. The effort to block the nomination took several tacks. At the outset, Senator Griffin tried to make a point of Fortas's close relationship with President Johnson, but his Republican colleague on the Judiciary Committee, Senate minority leader Everett Dirksen, dismissed that avenue. Dirksen observed that presidents regularly appointed "cronies" to the Supreme Court, citing Abraham Lincoln selecting his campaign manager David Davis, President Harry Truman appointing his private adviser Fred Vinson, and more recently President Kennedy sending his lieutenant Byron White to the Court.As his biographer Laura Kalman notes, Fortas's opponents then found an endless arsenal among his own opinions as a member of the Warren Court that could be used against him. For example, Republican senator Strom Thurmond of South Carolina spent several hours berating him about the Warren Court's criminal law holdings, even holding Fortas responsible for a ruling made before he arrived. The Senate Judiciary Committee called a witness from the Citizens for Decent Literature, who had examined fifty-two of the Court's rulings and determined that Fortas's vote had prevented the Court from finding obscenity in forty-nine of the cases. In addition, the witness had a slide show (later reviewed by the senators, and press, in a closed session) to display the types of pornographic materials he found offensive but that Justice Fortas had tolerated.Most damaging, however, Senator Griffin received an anonymous tip from an American University employee, where Fortas was teaching a seminar at the law school, that the school had raised "an exorbitant sum from businessmen to pay Fortas's salary." At that time it was not unusual for a justice to earn outside income by teaching; but in this case the amount was relatively large -- and possibly tainted. This was reason to reopen the hearings, which revealed that Fortas's former law partner, Paul Porter, had gone to friends and clients to raise $30,000, with half going to the American University law school and the other half going to Fortas. Porter said that Fortas had not been told of this arrangement, but the Senate made much of the appearance of impropriety of Fortas's $15,000 fee, which amounted to 40 percent of a Supreme Court justice's salary at that time.When the Fortas nomination came to the Senate floor, the Republicans mounted a historic filibuster -- the first against a Supreme Court nomination. The Johnson White House lacked the political muscle to prevent this unless, it was said, Richard Nixon urged a halt. But Nixon refused to comment publicly, and through backchannels he sent advice and praise to the Republicans' effort.10 On October 1, 1968, when the Senate failed to vote for cloture (thus ending the filibuster), Justice Fortas, realizing that his nomination was doomed, requested that Johnson withdraw it. With the Fortas nomination defeated, the Thornberry nomination became moot. Given the limited time available, Johnson could name no successor to Chief Justice Earl Warren. The vacancy for chief justice awaited Nixon.Ousting Abe FortasThe story of how Richard Nixon created a second opening on the Court has never been fully told. After winning in November, Nixon arranged for retiring Chief Justice Earl Warren to remain on the Court until the end of the Court term in June 1969. This gave the new president six months to select his chief justice. Ostensibly to show Earl Warren his appreciation for remaining, but in truth because Nixon wanted to size up the remaining eight still on the Court for himself, he decided to have a White House dinner to honor the retiring chief justice. Of particular interest to Nixon were five justices -- William O. Douglas, Hugo Black, Thurgood Marshall, Abe Fortas, and William Brennan -- who with Earl Warren formed the core of the Court's controlling liberal voting bloc.The "Earl Warren Dinner" on April 23, 1969, was a lavish, black-tie affair, with the members of the Supreme Court and wives, Earl Warren's family, Nixon's cabinet and wives, and his former law partners and their wives heading the guest list. Richard Nixon treated his old enemy Warren like a visiting head of state, starting with a private meeting with wives in the Yellow Oval Room in the family quarters, then a walk down the Grand Staircase with the Marine Band playing, where about 110 well-wishers including the chief's family and friends awaited and watched, and finally with "Ruffles and Flourishes" to usher everyone into the East Room for a formal dinner, which ended with a convivial, and witty, toast to the chief justice by the president. Astute observers could have noticed that the new president's guest list included three men he was actively considering for the Supreme Court: Thomas E. Dewey, Herbert Brownell, and Warren Burger.Only a few Nixon aides knew of the president's thinking, and even fewer knew of his hidden agenda. Nixon wanted to create additional vacancies, and the Earl Warren Dinner was typical of the public misdirection that concealed his true plans. White House aide John Ehrlichman, then counsel to the president, reported in his memoir that "the Justice Department was hearing rumors [at this time] of Justice Abe Fortas' dealings with [convicted] financier Louis Wolfson. By May 1969, Life magazine had written an expose of Fortas' agreement with Wolfson, and Nixon cleared his desk of other work to focus on getting Fortas off the Court." Ehrlichman didn't say that it was the Department of Justice that was spreading rumors and leaking this information to Life reporter William Lambert. Ehrlichman had been given advance proofs of the Life story several days prior to its publication, scheduled for Sunday afternoon, May 4. The Justice Department had passed along the fact that, while sitting on the Supreme Court, Fortas had accepted a $20,000 retainer from Louis Wolfson, who was under investigation by the Securities and Exchange Commission (SEC). (He would later be indicted and convicted of fraud.) At the time of the investigation, Wolfson bragged that his friend Abe Fortas was going to help him.On May 1, three days before publication by Life, Assistant Attorney General William Rehnquist sent Attorney General Mitchell a memorandum providing a precedent for the Department of Justice to investigate the Fortas-Wolfson relationship. To date, this memo has not surfaced at the National Archives with other Department of Justice papers of the period. Nonetheless, the contents of the memo and the reason it was written by Rehnquist have been reported. Veteran Washington journalist and author Robert Shogan interviewed John Mitchell in 1971 while he was still attorney general, and Mitchell in turn (after waiving any attorney-client privilege with his constitutional lawyer) opened the door for an interview with Rehnquist. Although additional information has surfaced in the years since Shogan published A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court (1972), this book recorded Rehnquist's crucial role.Mitchell told Shogan, "We were struggling to find answers to what we should or shouldn't do." With good reason. For the Department of Justice, as an arm of the Executive Branch, to investigate or prosecute any federal judge, not to mention a Supreme Court justice, certainly raised fundamental legal issues, and the investigation of Fortas was uncharted. Article III of the Constitution provides: "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior." There is no express provision in the Constitution respecting removals, except for Article II, which provides for removal from office of "all civil officers of the United States" (including judges and justices) by impeachment. Alexander Hamilton wrote in The Federalist No. 79: "The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government." He added, "Nothing can contribute so much to firmness and independence [of the judicial branch] as permanency in office." Of impeachment, Hamilton further noted: "This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges."Mitchell did not need a constitutional lawyer to understand the limits on his investigative powers relating to Abe Fortas. According to Shogan, he learned (I suspect from Henry Petersen, who had the necessary institutional memory) that the Justice Department had always "been hesitant to seem to threaten the independence of the judiciary." Investigating a Supreme Court justice could place the Justice Department on thin ice, because the power of impeachment belonged exclusively to the Congress. It was for this reason that Mitchell turned to the "intellectual adroitness" of Rehnquist, a former Supreme Court law clerk, for help. Shogan reported the following:(1) Rehnquist "took no part in the direct investigation" of Fortas, which was handled by Will Wilson and Henry Petersen of the criminal division. Rather, Rehnquist was asked, as he himself put it, "to assume the most damaging set of inferences about the case were true" and to "determine what action the Justice Department could take."This was a remarkable assignment. The Justice Department was deciding how to deal with one of the nine highest judicial officials of the nation; whether and how to cross the constitutional divide of a judicial independence. Presumably Rehnquist was to make certain the Department of Justice acted in a constitutional manner. Yet he was told to ignore the facts and assume the worst and most damaging inferences. Common sense -- and careful legal analysis -- would demand facts, not inferences. The only thing more surprising is that he took the assignment. This is Alice in Wonderland, not legal analysis.(2) The worst inference Rehnquist could draw was that Fortas, while sitting on the Supreme Court, had somehow intervened in the government's prosecution of Wolfson's stock market activities. (In fact he had not.) Based on this (false) inference, Rehnquist searched the federal criminal code, and found one provision that "seemed to cover the Fortas-Wolfson relationship, as Rehnquist understood it." It was a statute that made it a crime for "officers of the judicial branch" to be rewarded "for services rendered on behalf of another person before a Government department or agency in relation to any particular matter in which the United States is a party." Shogan notes, "Just what services Fortas had been expected to render in return remained to be established, but this was not Rehnquist's responsibility."(3) Having found a possibly relevant federal criminal law, "Rehnquist next sought to determine whether the Justice Department could prosecute Fortas for violating that law while he remained on the Court." Rehnquist found no precedents that "fit the present case exactly." But he did find that "in 1790 the First Congress, which included among its members James Madison and other drafters of the Constitution, had passed a law making it possible to prosecute Federal judges for bribery." In addition, Rehnquist found that six years later (1796), the third attorney general of the United States had "held that a judge could be called to account for unlawful behavior by criminal indictment as well as by impeachment." Shogan reports that "Rehnquist believed that Attorney General Lee's conclusion was well grounded enough for Attorney General Mitchell to follow some 170 years later. On May 1 Rehnquist sent Mitchell a memorandum advising him that if the department had the evidence, it could prosecute Justice Fortas."Shogan had no reason to examine the basis of Rehnquist's advice, but it is easy to do so. Most striking is what Rehnquist apparently did not tell Mitchell: The 1790 bribery law was not necessarily designed to prosecute judges while in office; rather it provides a remedy after they had been removed by impeachment. The language and history of the Constitution clearly suggest that Congress, not the Executive Branch, is responsible for policing "good behavior" of Supreme Court justices.Nonetheless, Rehnquist's advice gave Mitchell the solace and authority he needed. Mitchell was just getting warmed up. Before the Life story hit the streets he had his press man, Jack C. Landau, obtain a copy of the magazine. (Landau sent a U.S. marshal to New York to pick it up.) Shortly before publication Jack Landau was working his Rolodex, frantically calling reporters who covered the Justice Department and the Supreme Court to give them a heads-up on the coming story. As Shogan observed, this action "put the Justice Department in the dubious position of promoting Life's exposé."The Life story was front-page news. Mitchell, proud of his handiwork, boasted of it at a White House staff meeting on Tuesday, May 6 (before meeting with the Republican leadership), and revealed his further plans for the high court. These were duly noted by presidential aide Patrick Buchanan, who dashed off a memo to the president reporting that the "Attorney General has hinted this morning that this scandal is only a part of what may soon be revealed about Fortas and other 'judges and justices.'" Mitchell was bolstered by Fortas's failure to respond to the Life story. His lack of response prompted The Washington Post to call for his resignation. Members of the House and Senate quickly joined the Post to form a chorus.Although William Lambert denied that the Nixon administration leaked the Fortas story to Life, everyone believed (correctly) that the administration was responsible. Both Republicans and Democrats on Capitol Hill assumed that Nixon and his men were orchestrating the ouster of Fortas. This truth was all but publicly confirmed when it was soon leaked that John Mitchell made a secretive visit to Chief Justice Warren's chambers to discuss Fortas.On May 7, Mitchell's long black limousine pulled quietly into the basement garage of the Supreme Court Building, and the attorney general was whisked through the building for a confidential session with the chief justice. Mitchell had not met Earl Warren before the White House dinner a few weeks earlier, but the glow of good feeling still radiated from that evening.While there was incipient talk of impeaching Fortas in the House of Representatives, Mitchell hoped to enlist Earl Warren -- and the others on the Court -- to persuade Abe Fortas to resign. To bolster his case, Mitchell carried documents that the Department of Justice had just received from the Internal Revenue Service, which had subpoenaed the Louis Wolfson Foundation. These showed that Fortas had agreed to more than a onetime payment of $20,000 from Wolfson: rather, the Wolfson Foundation had arranged to pay Fortas $20,000 a year for life, and should he predecease his wife, the foundation would pay Mrs. Fortas as long as she might live. At the time this was not an unusual arrangement. Justice William O. Douglas had a similar agreement with a foundation, and one of the judges Mitchell was reviewing for promotion to the Supreme Court, Warren Burger, had long received fees for his service on the board of the Mayo Clinic. Many justices received handsome fees for lectures. Mitchell mentioned other documents as well: Wolfson-Fortas correspondence in which Wolfson's case before the SEC had been discussed, and "one letter [in which] Wolfson asked Fortas's help in obtaining a presidential pardon [by having former President Lyndon Johnson request that Richard Nixon grant it]." Mitchell reported that Louis Wolfson, who was now serving his prison term, was cooperating with the Department of Justice. The attorney general ended his visit with the implicit message: If Fortas resigned, the criminal investigation by the Department of Justice would end, saving Fortas and the Court any embarrassment.Did the Justice Department have the goods on Fortas? Not even close. Mitchell's talk was pure bluff. On May 10, Wolfson met with FBI agents and Assistant Attorney General Will Wilson, who headed the Justice Department's criminal division. Wilson had been spearheading the investigation of Fortas with the avowed purpose of removing him from the Court. To the chagrin of Wilson, not only did Wolfson not have any evidence of wrongdoing by Fortas, he exonerated the justice. Wolfson told the government's top prosecutor that Fortas had done nothing for him, nor had he ever hinted that he might. There had been no quid pro quo.Mitchell's next move was political hardball. To increase the pressure on Fortas, the Department of Justice reopened an old investigation that focused on the two people closest to Abe Fortas -- his wife, Carol Agger, a highly paid tax law specialist, and his former law partner, Paul Porter. A Washington, D.C., grand jury was convened to determine if documents allegedly misplaced but purportedly later found in Agger's office safe had been deliberately withheld when they had been subpoenaed in a price-fixing case several years earlier. The grand jury was exploring whether Agger or Porter had obstructed justice -- a serious felony -- by withholding the documents. Lyndon Johnson's Justice Department had investigated this question and found nothing improper, deciding the delay was not an effort to impede the earlier investigation. Reopening of the matter by Richard Nixon's Justice Department was purely a means to torture Fortas.

By the time Fortas presented his plight to his brethren, he had made the decision to retire. More remarkably, he got no sympathy from his colleagues. They treated him as a condemned man. Not one protested that he had broken no law. Not one acknowledged that other justices at the conference table had accepted fees from charitable foundations. Not one suggested that Fortas should stay and fight. Richard Nixon and John Mitchell had intimidated them all.By May 14, 1969, it was over. Mitchell's bluff had succeeded beyond his wildest expectations. Chief Justice Warren had his secretary call the White House. Dwight Chapin took the call and typed a note at 4:20 P.M. that he slipped to the president, who was in a bipartisan leadership meeting: "The Chief Justice needs to talk to you urgently. I have told his office that you will call at 4:45 P.M." Nixon nodded. At the appointed time he excused himself from the meeting to call Earl Warren, and learned that Abe Fortas was resigning. Nixon, who was scheduled to deliver a major speech on Vietnam to the nation on national television that evening, told Warren that he did not want anything distracting from his speech, so the White House would not announce the resignation until the next day. When the letter arrived at the White House, the chief justice had penned a note to the president, requesting that Fortas "be advised shortly before the release in order that he might inform President Johnson before he hears it on the radio." This was fine with Nixon.Haldeman informed John Mitchell of the news. At the Justice Department there was a small celebration in the attorney general's office. Mitchell summoned Will Wilson and his deputy Henry Petersen to congratulate the team that had been running the smoke machine. When Deputy Attorney General Dick Kleindienst stepped off the back elevator and into Mitchell's office, he was elated by the news. Kleindienst said the occasion called for a drink, so they opened the bar, pouring heartily to toast their success. The celebration was capped with a call from the president, congratulating them on a job well done.

The next morning, before the White House could advise Fortas that they were going to announce the president's acceptance of his resignation, a report was on the wires announcing the resignation. What happened was ironic: the Los Angeles Times ran a story claiming that the Justice Department believed the documents it had obtained from Wolfson showed that Fortas had been willing to assist him with his SEC investigation. It was the result of another Justice Department leak to pressure Fortas, before learning he had folded. When Fortas read the story, he was outraged; he knew such an interpretation was not possible, nor had he ever expressed such a willingness. Fortas called the Supreme Court's press office, and ordered that they release the news of his resignation immediately. Fortas couldn't have cared less that this was a breach of protocol, since his resignation had not been accepted by the president. Nor, given the treatment he was getting from the Nixon administration, did he give a hoot if releasing the announcement displeased Richard Nixon.The Fortas resignation meant that Richard Nixon now had two seats to fill on the Court: Earl Warren's center seat and the seat of Associate Justice Abe Fortas, who was leaving the Court at fifty-nine years of age. It also meant that two of the Court's most liberal justices were gone. Nixon's aggressive posture toward the high court was paying off in a big way, with the help of John Mitchell and his hard-nosed team at the Justice Department, Rehnquist among them.Selecting a Chief JusticeNixon's first major appointment would prove to be the easiest of all of the four seats that he eventually would fill. After looking briefly at some candidates, more as a matter of courtesy to Republican elders than in hope of finding a new chief justice, the president named his man and watched him sail through the Senate.Shortly after his November 1968 election victory, Nixon told his attorney general designate, Mitchell, that they should consider appointing President Eisenhower's attorney general, Herbert Brownell, as chief justice. This idea never progressed, however, because Brownell took himself out of the running. So did Eisenhower's second attorney general, William P. Rogers, whom Nixon did convince to take the post of secretary of state. J. Edgar Hoover's biographer, Curt Gentry, claims that it was the FBI director who took these men out of contention, because he had worked for them both and despite claiming them both as friends, he did not want them on the Supreme Court. Regardless, both Brownell and Rogers withdrew and suggested a candidate that Nixon had already been considering: Warren Burger, the chief judge of the prestigious United States Court of Appeals for the District of Columbia.Nixon also had considered former New York governor Thomas Dewey, the onetime Republican presidential standard-bearer. But Dewey, then in his late sixties, thought himself too old and was not interested. The rumor that Nixon was considering elevating Associate Justice Potter Stewart prompted Stewart to make a trip to the White House to tell Nixon that it was unwise to elevate a sitting justice to chief justice as President Johnson had tried to do with Fortas. In fact, Nixon was not considering Justice Stewart, for Nixon was less than impressed with Stewart as a jurist.Warren Burger became the leading contender early. He was energetically seeking the job. He was an able politician who realized that his judicial philosophy was exactly what Richard Nixon sought. Burger had learned this in 1967, when he received a letter from Nixon complimenting him on a "law and order" article he had written for U.S. News & World Report. The article was accompanied by a picture of the white-haired jurist, a man who looked like a chief justice from central casting. Nixon referred to and quoted from the Burger article often during his 1968 campaign. Following his inauguration, the new president requested that Judge Burger come to the White House to administer the oath of office to his new cabinet appointees, and after the swearing-in ceremony, Nixon had Burger join him in the Oval Office for a conversation. Nixon asked Burger, who was broadly familiar with the legal community, if he would give John Mitchell his suggestions for men who should be considered for federal judgeships, including the Supreme Court. The president said he did not care if they were Republicans or Democrats -- so long as they were solid conservatives. Burger was flattered, and pleased to assist.Among the names that Burger initially suggested to John Mitchell were G. Harrold Carswell, a forty-nine-year-old judge on the United States District Court for the Northern District of Florida, and Burger's longtime friend Judge Harry Blackmun, a sixty-year-old Federal appeals court judge sitting in the Eighth Circuit. Burger's recommendations were added to a master list that was being prepared by Rehnquist. The list also included a recommendation made personally to Mitchell by Senator Ernest Hollings (D-SC) for Judge Clement Haynsworth, a judge in his mid-fifties on the United States Court of Appeals for the Fourth Circuit; and a candidate being urged by Senator Harry Byrd (D-VA), Lewis Powell, a sixty-one-year-old Democrat from Virginia and the former president of the American Bar Association (ABA).While the media attention was still focusing on the resignation of Abe Fortas, Mitchell asked Judge Burger to come to his office at the Justice Department to review possible candidates to fill the Fortas seat. Mitchell also requested that Kleindienst join the meeting, which Kleindienst later described:I had never met Warren Burger, but I had argued an appeal before him two or three years before. When I walked into Mitchell's office I easily recognized his distinguished features and warm manner. He laughed when I reminded him of the case that I had argued before him....Mitchell and Burger then spent the next hour or two going over a long list of judges, lawyers, and professors. Burger was familiar with almost every person on the list. He knew most personally and commented specifically about the judicial philosophy of nearly all. What impressed me even more, however, was the absence of negative remarks about the persons he discussed. He sought only to point out the positive qualities of each. Not once did he so much as hint that he should be included on the list under consideration. His conversation with Mitchell was impressive and objective.When Judge Burger departed, Mitchell turned to me and asked, "What did you think of that?""Unbelievable.""I'm glad you think so. He's going to be the next chief justice."Mitchell did not select Burger, but there was no doubt in his mind how he became chief justice. "Burger's the first guy to run for the job of Chief Justice -- and get it," Mitchell wryly observed to several aides. Nor is there any doubt, as recorded by Supreme Court historian Henry Abraham, that "Nixon's choice of Judge Burger was one of those rare examples of an indisputably bona fide personal choice by a chief executive [as] chief executive....By his own assertions, he considered his selection of Burger to be 'the most personal of [my] Presidency to date.'"On May 21, 1969, Nixon staged a su

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The Rehnquist Choice

The Untold Story of the Nixon Appointment That Redefined the Supreme Court

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Praise

"Robert D. Novak National Review The inside look at chaos in deciding who should fill Supreme Court vacancies is a delight....Dean has performed a valuable service in recording Nixon's tortuous course to a decision."

"Robert D. Novak National Review The inside look at chaos in deciding who should fill Supreme Court vacancies is a delight....Dean has performed a valuable service in recording Nixon's tortuous course to a decision."

"David Greenberg The Washington Monthly The most detailed behind-the-scenes account ever written of a high court nomination...impressive for many reasons: its lucid prose, its subtle humor, its relentlessly logical argumentation...a terrific page-turner."